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DESIMONE HOSPITALITY SERVICES, LLC v. WEST VIRGINIA-AMERICAN WATER COMPANY

Action Nos. 2:14-00063, 2:14-00038, 2:14-00039, 2:14-00040, 2:14-00041, 2:14-00042, 2:14-00043, 2:14-00044, 2:14-00045, 2:14-00046, 2:14-00047, 2:14-00048, 2:14-00049, 2:14-00050, 2:14-00051, 2:14-00052, 2:14-00053, 2:14-00054, 2:14-00055, 2:14-00056, 2:14-00057, 2:14-00058, 2:14-00059, 2:14-00060, 2:14-00061, 2:14-00062, 2:14-00064, 2:14-00065, 2:14-00066, 2:14-00067, 2:14-00068, 2:14-00069, 2:14-00070, 2:14-00071, 2:14-00072, 2:14-00073, 2:14-00074, 2:14-00075, 2:14-00076, 2:14-00077, 2:14-00078, 2:14-00079, 2:14-00080, 2:14-00081, 2:14-00082, 2:14-00083, 2:14-00084, 2:14-00085, 2:14-00086, 2:14-00087, 2:14-00088, 2:14-00089, 2:14-00090, 2:14-00091, 2:14-00092, 2:14-00093, 2:14-00098, No. 2:14-2036., 2:14-2008, 2:14-2009, 2:14-2010, 2:14-2011, 2:14-2012, 2:14-2013, 2:14-2014, 2:14-2015, 2:14-2016, 2:14-2017, 2:14-2018, 2:14-2019, 2:14-2022, 2:14-2023, 2:14-2024, 2:14-2025, 2:14-2026, 2:14-2027, 2:14-2029, 2:14-2030, 2:14-2031, 2:14-2032, 2:14-2030, 2:14-2034, 2:14-2035, 2:14-2037, 2:14-2038, 2:14-2039, 2:14-2040, 2:14-2041, 2:14-2042, 2:14-2043, 2:14-2044, 2:14-2045, 2:14-2046, 2:14-2047, 2:14-2048, 2:14-2049, 2:14-2050, 2:14-2051, 2:14-2052, 2:14-2053, 2:14-2054, 2:14-2055, 2:14-2056, 2:14-2057, 2:14-2058, 2:14-2059, 2:14-2060, 2:14-2061, 2:14-2062, 2:14-2063, 2:14-2064, 2:14-2065, 2:14-2067, 2:14-2028

DESIMONE HOSPITALITY SERVICES, LLC, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. SHAPE SHOP, INC. and THELMA FAYS, LLC d/b/a THELMA FAYS CAFE, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and AMERICAN WATER WORKS SERVICE COMPANY, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. NOEL HARDMAN and BRIAN VANNOY and DIANA JOHNSON and COURTNEY HARPER and KATHRYN CASTO and ROBERT STRINGER and KIMBERLY LAPSLEY and TIMOTHY WILBURN and MEAGAN KRASYK and HEIDI STRICKLEN and MARK STRICKLEN and SONJA MARSHALL and MARLENE DIAL and MARGARET SUE ZALENSKI and JOSEPH ZALENSKI and JAMES PARSONS and JANET ATKINS and KEITH ROEHL and LISA ROEHL and CARL CHADBAND and KRISTI CHADBAND and WILLIAM LIPSCOMB and DEBRA LIPSCOMB and APRIL HARRIS and ARMELIA PANNELL and LENOX CHANDLER and JOHNETTE JASPER and LATAUSHA TAYLOR and KEVIN STUBBLEFIELD and MARTHA STUBBLEFIELD and TAMMY PARSONS, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. MADDIE P. FIELDS, Plaintiff, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. RODOCO, INC. d/b/a DONUT CONNECTION, and ALMOST HEAVEN BURGERS, INC. d/b/a CHECKERS DRIVE-IN RESTAURANT and HARGIS UNLIMITED, LLC d/b/a KANAWHA CITY COIN LAUNDRY and MELANIE MARTIN and MEGAN SPEARS and SYRRA SALON LLC and PAUL KIRK d/b/a BARE KNUCKLES TATTOO SHOP, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. EG & K INC. and RUSTY A. CARPENTER, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, and JOHN DOE CORPORATION 1 THROUGH 5 and JOHN DOE, Defendants. SUSAN K. DYER individually and on behalf of all others similar situated, Plaintiff, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY, Defendants. 5 CORNERS CAFÉ, LLC and THE VINTAGE BARBER SHOP and JUSTIN A. AMOS, Plaintiffs, v. FREEDOM INDUSTRIES, INC., Defendant. CANDICE HENRY MAHOOD and CARRIE ANN SAMUELS and KATHERINE ELLA GRUBB and KELLI OLDHAM and ELIZABETH GRUBB, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and DENNIS FARRELL and WEST VIRGINIA AMERICAN WATER COMPANY and OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants. VON HARVEY, Plaintiff, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER and AMERICAN WATER WORKS SERVICE COMPANY, INC. and OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants. PRAY CONSTRUCTION COMPANY and A-LEX, INC. and GRUMPY'S GRILLE, LLC and TWOD INC., Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants. JOE FAZIO'S RESTAURANT, INC., Plaintiff, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER, Defendants. LAURA GANDEE, individual and as representative of others similarly situated, Plaintiff, v. FREEDOM INDUSTRIES, INC., Defendant. JOHN NELSON and WANDA TRIBBIE, an individual and as representative of and along with "other stylists or barbers, located in Kanawha, Putnam, Boone, Jackson, Cabell, Clay Lincoln, Logan and Roane Counties similarly situated, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. KUPPEL LLC d/b/a DREAM TANK d/b/a CAPITOL DOME BAR & GRILLE and REEMA FAMILY HAIRSTYLING, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER, Defendants. SHANNON LARWA and SHANNON'S SUITE SALON, LLC d/b/a SHANNON'S SUITE SALON and JENNIFER SCHOOLCRAFT and INNOV8 SALON, LLC d/b/a INNOV8 SALON, LLC and ALEX MORGADO and MORGADO DESIGN, LLC d/b/a MORGADO DESIGN and JOHN PATRICK BURGESS, DDS and MADIGAN RAE BURGESS, DDS, individually and on behalf of all others similarly situated, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. CORNELLISUS D. CHRISTIAN, Plaintiff, v. FREEDOM INDUSTRIES, INC., Defendant. JOHN LEVIN and LOUISA LEVIN on behalf of themselves and all others situated, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER COMPANY, Defendants. GRAZIANO INVESTMENTS, INC. and CATERING UNLIMITED, INC. and SHELTON'S OF KANAWHA CITY, LLC and ERIC BOOTH individually and on behalf of others similarly situated, Plaintiffs, v. FREEDOM INDUSTRIES, INC., Defendant. HAIR WE ARE, INC., Plaintiff, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA AMERICAN WATER, Defendants. JUNE GURSKI and JOHN DOE BUSINESS OWNER, Plaintiffs, v. FREEDOM INDUSTRIES, INC. and WEST VIRGINIA-AMERICAN WATER COMPANY and JOHN DOE CORPORATION 1 THROUGH 5 and JOHN DOE, Defendants. LITTLE BO PEEP DAYCARE and KIDS R US DAYCARE and PAULINE'S HOUSE OF CURLS and JANE GURSKI and PAULA MILLER, individually and on behalf of others similarly situated, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. BOBBY L. TUCKER and REBA TUCKER, his wife, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. MAID IN THE USA, INC., doing business as Maid to Perfection of Charleston, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. OTIS TUCKER and DANETTE TUCKER, his wife, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. THE TOWN OF BUFFALO, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. RONNIE ALLEN BRISCOE and DENISE EVON BRISCOE, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. DEBORAH J. HEDRICK, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. WILLIAM DESIMONE, JR. and DEANNA L. DESIMONE, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. LARRY NEWHOUSE and BRENDA NEWHOUSE, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. WELLINGTON'S, INC., a West Virginia corporation, doing business as Wellington's Cafe' & Catering, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. DARRELL L. MOORE and TAMMY MOORE, his wife, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. GARY N. DEWEESE and CONNIE L. DEWEESE, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. GERALDINE JOHNS, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. CHRISTOPHER M. DEWEESE and LORI L. DEWEESE, Plaintiffs, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. CHRISTOPHER JORDAN, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. SANDYLOU & TIFFANY 2, LLC, a West Virginia corporation, doing business as Angaleno's Pizza, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. MARGIE JORDAN, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. NICK KONNOVITCH, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY and FREEDOM INDUSTRIES, INC., Defendants. MISTY HARRIS, Plaintiff, v. WEST VIRGINIA-AMERICAN WATER COMPANY, Defendant. MARY BARBER Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant WARREN SHAMBLIN and JESSICA SHAMBLIN, Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant. BUFFALO VOLUNTEER FIRE DEPARTMENT, INC., Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant TRENT FORBIS and LESLI FORBIS Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant EJ&K ENTERPRISES, LLC and SOUTH HILLS MARKET & CAFÉ, LLC Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant JASON BROGAN Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant AM & GH LLC, doing business as Grano, and L AND G FOODS, INC. and SAHARA CATERING & RESTAURANT, INC., and MADELINES CAFÉ INC., and MOUND CLEANERS, INC., and NEXUS ATHLETIC CLUBS, INC., and CITY FITNESS, INC., and NAUTILUS FITNESS CENTER, INC., and KINETIX FITNESS LLC, and PAUL WALTON, JR., and TABETHA PEIROS and BART A. ROBERTS and KRISTI MADDOX, and all others similarly situated, Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant FALBO & MONDAY, PLLC, and similiarly situated, Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant J. E., individually and on behalf of their minor child, K.E., Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant MELISSA JEAN MEDLEY, Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant RICHARD GRAVELY, Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant SCOTT MILLER and BAR 101, LLC, and ICHIBAN, individually and on behalf of all others similarly situated, Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant MARK STRICKLAND, Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant DANIEL CLEVE STEWART, Plaintiff. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant KRISTY ORD and SHERRI VANCE and CAMBREE VANCE and ANN PERRINE and SANDRA BOWLES and JENNIFER TOTTEN and WILLIAM G. JONES, Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant ADELPHIA, INC., on behalf of themselves and all others similarly situated, doing business as Adelphia Sports Bar & Grill, doing business as Capitol Car Wash, doing business as Spyros Parking Lots, Plaintiffs. v. WEST VIRGINIA AMERICAN WATER COMPANY Defendant KANAWHA GOURMET SANDWICHES, LLC, individually and on behalf of all others similarly situated Plaintiff. v. FREEDOM INDUSTRIES, INC., and WEST VIRGINIA AMERICAN WATER and OFFICIAL COMMITTEE OF UNSECURED CREDITORS FOR FREEDOM INDUSTRIES, INC., Defendants.

United States District Court, S.D. West Virginia, Charleston.

April 16, 2014.

Attorney(s) appearing for the Case

Freedom Industries, Inc., Debtor, In Re, represented by Brian C. Root , MCGUIRE WOODS, J. Nicholas Barth , BARTH & THOMPSON, Jason P. Alter , McGUIRE WOODS, Mark E. Freedlander , MCGUIRE WOODS, Michael J. Roeschenthaler , MCGUIRE WOODS, Scott E. Schuster , McGUIRE WOODS & Stephen L. Thompson , BARTH & THOMPSON.

Desimone Hospitality Services, LLC, Plaintiff, represented by Harvey D. Peyton , THE PEYTON LAW FIRM & Thomas H. Peyton , THE PEYTON LAW FIRM.

West Virginia-American Water Company, Defendant, represented by A. L. Emch , JACKSON KELLY, Brian R. Swiger , JACKSON KELLY, Thomas J. Hurney, Jr. , JACKSON KELLY, William C. Ballard , JACKSON KELLY & William F. Dobbs, Jr. , JACKSON KELLY.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, Jr., District Judge.

Pending are omnibus motions to withdraw reference of these cases to the bankruptcy court, filed on or about March 3, 2014, in the above-styled adversary proceedings.

I.

Freedom is a West Virginia corporation engaged primarily in the production of specialty chemicals for the mining, steel, and cement industries. It is also a leading supplier of freeze conditioning agents, dust control palliatives, flotation reagents, water treatment polymers, and other specialty chemicals. Freedom operates two production facilities in West Virginia, namely, in Nitro ("Nitro Facility") and Charleston ("Charleston Facility").

On January 9, 2014, an apparent leak occurred in one of Freedom's storage tanks located at the Charleston Facility. On January 17, 2014 ("Petition Date"), Freedom petitioned in this district for relief under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101.

At the time of filing of the omnibus motions to withdraw reference, 62 civil actions had been instituted against various defendants relating to the incident. Freedom contends it is foreseeable that, in those cases where it is not named, parties will assert indemnity or contribution claims against it at a later time. On February 21 and 22, 2014, Freedom removed to the bankruptcy court those state actions in which it was named a defendant. On February 24, 2014, West Virginia American Water Company ("WVAWC") removed to this court as "related-to" cases each of the state actions in which Freedom was not named.2

The factual allegations in all of the cases arise from the alleged leak. According to Freedom, the claims vary and rely on a range of legal and equitable theories. No one disputes, however, that the plaintiffs assert one or more of four categories of claims as follows: (a) physical personal injury tort claims, such as bodily injury, emotional distress and/or requests for medical monitoring to detect bodily injury in the future; (b) non-physical personal injury tort claims, such as annoyance, loss of enjoyment, nuisance and inconvenience; (c) property-related claims, such as trespass, property damage, and loss of use of property; and (d) financial claims, such as lost income or loss-of-business claims.

The court has reviewed the claims register in the case. At this point, it does not appear that any of the plaintiffs have filed a claim against Freedom. A jury trial is demanded in all of the actions.

II.

A. The Governing Standard

From the outset, it is important to take note of our court of appeals' views concerning the respective powers of the district and bankruptcy courts in a setting such as this:

[F]ederal district courts exercise original jurisdiction over all "matters and proceedings in bankruptcy," 28 U.S.C. § 1334, and bankruptcy judges "serve as judicial officers of the United States district court established under Article III of the Constitution." 28 U.S.C. § 152(a)(1). Bankruptcy courts are . . . "unit[s] of the district court," 28 U.S.C. § 151, and derive their jurisdiction only through 28 U.S.C. § 157(a), which authorizes district courts to refer bankruptcy matters at their discretion to bankruptcy courts. However, district courts retain the power to withdraw any reference from the bankruptcy court. 28 U.S.C. § 157(d). Thus, "while functionally there may appear to be a separate bankruptcy court, for jurisdictional purposes there is only one court, i.e., the district court." In re Northwest Cinema Corp., 49 B.R. at 480.

In re Grewe, 4 F.3d 299, 304 (4th Cir. 1993) (footnote omitted); see also Anderson v. Federal Deposit Ins. Corp., 918 F.2d 1139, 1142 (4th Cir. 1990) ("District courts may withdraw reference to the bankruptcy court of a bankruptcy case or related proceeding, in whole or in part under 28 U.S.C. § 157(d).").

There is good reason for withdrawal at this time. It appears at this juncture that, despite the presence of equitable claims, the plaintiffs have essentially pled actions at law seeking damages. As the Supreme Court held in In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), a right to a jury trial attaches in such actions. The equitable claims do not require a different result.

In Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), the Supreme Court reiterated that "where both legal and equitable issues are presented in a single case, `only under the most imperative circumstances . . . can the right to a jury trial of legal issues be lost through prior determination of equitable claims.'" Id. at 472-73 (quoting Beacon Theatres v. Westover, 359 U.S. 500, 510-11 (1959)). As further stated in Dairy Queen:

[T]he constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings. The necessary prerequisite to the right to maintain a suit for an equitable accounting, like all other equitable remedies, is . . . the absence of an adequate remedy at law.

Id. at 477-78.

Our court of appeals addressed a withdrawal of reference request as to core claims in In re Stansbury Poplar Place, Inc., 13 F.3d 122 (4th Cir. 1999). In re Stansbury involved five related bankruptcy estates. An omnibus creditors' committee instituted adversary proceedings against the debtors' officers, directors, insiders and shareholders ("defendants") on a variety of grounds. Defendants contended that (1) they enjoyed a Seventh Amendment right to jury trials on the committees' fraudulent conveyance actions, (2) the bankruptcy court lacked authority to conduct the trials, and (3) the order of reference should be immediately withdrawn.

After concluding defendants were correct on the first two points, the court of appeals parted company with them on the necessity of immediate withdrawal. The underlying analysis is instructive here:

Our holding that bankruptcy judges are not authorized to conduct jury trials does not mean that the bankruptcy court immediately loses jurisdiction of the entire matter or that the district court cannot delegate to the bankruptcy court the responsibility for supervising discovery, conducting pre-trial conferences, and other matters short of the jury selection and trial. The decision whether or not to withdraw the referral immediately "is frequently more a pragmatic question of efficient case administration than a strictly legal decision." Travelers Ins. Co. v. Goldberg, 135 B.R. 788, 792 (D. Md. 1992). While the bankruptcy court may be uniquely qualified to conduct pre-trial matters in some core proceedings, in other cases such a referral would be a "futile detour, requiring substantial duplication of judicial effort." Compare Travelers Ins. Co., 135 B.R. at 792-93 with City Fire Equipment Co. v. Ansul Fire Protection Wormald U.S., Inc., 125 B.R. 645, 649 (N.D. Ala. 1989) (bankruptcy court has the authority and is uniquely qualified to supervise discovery and decide pre-trial issues). This type of pragmatic decision is best left to the district court and we remand for that court to consider the Committee's request.

Stansbury, 13 F.3d at 128.

The court concludes that the plaintiffs in the aforementioned adversary proceedings appear entitled to a jury trial as requested in each of the actions covered by the motions for withdrawal of reference. It further does not appear that any party desires to consent to the bankruptcy court conducting jury trials in these matters pursuant to 28 U.S.C. § 157(e), nor that such right to a jury trial has been somehow waived by the claims process to date. Inasmuch as many of these related-to cases involve traditional personal injury tort claims of a non-core variety, the better course is to withdraw reference immediately to assure efficient case administration.3 It is, accordingly, ORDERED that the motions to withdraw reference be, and hereby are, granted.

The Clerk is directed to forward copies of this written opinion and order to all counsel of record.

FootNotes


1. The style of this civil action is amended to conform herewith.
2. Two cases were instituted in the district court invoking federal question jurisdiction. Two more were removed and invoke diversity jurisdiction under the Class Action Fairness Act ("CAFA") and 28 U.S.C. § 1332(d)(2). The remaining actions were instituted in various state circuit courts and removed as adversary proceedings pursuant to 28 U.S.C. §§ 1334 and 1452(a).
3. It is noted that these types of claims are the subject of mandatory withdrawal of reference pursuant to 28 U.S.C. § 157(b)(5). Id. ("The district court shall order that personal injury tort . . . claims shall be tried in the district court in which the bankruptcy case is pending . . . .").

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